*1 Maryland, as of any licensee the State appeal right statute, to a result leads would seek construe appellants unreasonable, illogical, inconsistent with unquestionably that is Furthermore, sense, interpreta- such and absurd. common to the intent of contrary would be of the statute tion liquor of from a local appeal to limit legislature licensing board’s decision. “licensee,” as utilized the term therefore hold
We 16—101(b)(l)(i), license refers to whose section judi- from which licensing in a local board’s decision involved interpreta- Such an sought. court is cial review circuit legisla- and the with context of the statute comports tion tive intent. hold alcoholic appellants, each whom
None Board, the individuals were beverage granted by licenses Accordingly, Board. upon by acted whose license was of the Board the decision appeal none are licensees entitled to County. Circuit Court for Anne Arundel PAY AFFIRMED; APPELLANTS TO JUDGMENT COSTS.
Diane Assistant Joseph General Curran, Jr., General, brief), Baltimore, Attorney for Respondent. BELL, C.J., ELDRIDGE, RODOWSKY,
Argued before RAKER, JJ, CHASANOW H. MARVIN SMITH KARWACKI, (retired), L. Judges ROBERT Specially Assigned. (retired), KARWACKI, Specially- Judge
ROBERT L. Assigned. in this criminal case to a writ certiorari
We issued admitted rebuttal properly the trial court determine whether silence when his defendant’s regarding the officer, wife, accused the defendant in the hold that the court did abuse battering her. We shall a tacit admission admitting that evidence as its discretion present under the circumstances by the defendant instant case.
I. telephone p.m. August approximately On number, 911, telephone but placed emergency call was Never- up speaking operator. before with hung caller from terminal theless, able to determine her operator telephone used for the call the name of the subscriber to *3 then called that operator number. The telephone’s and that a man’s operator A and the heard number. woman answered what she background. voice Concerned yelling heard, police and an ambu- dispatched both the operator she had lance where the woman to whom to address spoken was located. County Baltimore Police De-
Officer John Johnson Philip Key-El, to arrive. the Petition- partment was the first er, knock on his door. The officer answered Officer Johnson’s if if [and] “asked had called 911 from this location anybody “no”, a there a Petitioner answered but wom- problem.” was room, wife, Petitioner’s an in the next later identified as “yes”. officer into the room where Mrs. answered The walked eye and her was Key-El standing. crying was She was left an standing and the Petitioner “arm’s bruised swollen. With length away”, Key-El asked Mrs. what had Officer Johnson her, gotten that had into happened responded and she she pulled husband that he her her argument with her and Despite hair the face. fact that she punched her hear her spoke enough with for the Petitioner volume statement, say anything according “he didn’t at all” to Officer Johnson Subsequently, Johnson. Officer decided to arrest Petitioner. trial, however, Key-El changed story. Testify-
At Mrs. her defense, for the ing she denied that Petitioner had her struck 19, 1994, injury August girlfriend but blamed her on a Key-El her husband’s. Mrs. testified that when she returned apartment evening, to their she her found husband with a she girlfriend. girl- She claimed that and the unidentified argued exchanged friend and then blows. She stated further after the getting Petitioner was successful his friend the apartment, argue out of she continued to with him. Ac- cording to Key-El, Mrs. when Petitioner refused identify girlfriend explain doing apart- what she was in their ment, she called the and accused Petitioner of battering her. She falsely further testified that she hus- her night band that in order hurt way Petitioner “the that he hurt me.” examination, cross Key-El
On Mrs. admitted that after August she had from received letter the Office of Attorney the State’s victim requesting complete she letter, impact statement. When Petitioner saw the he became angry away. later, however, it threw She testified that she wrote a who corresponded letter had with from her the State’s office in Attorney’s repeated which she her accusation that Petitioner struck eye her with his 19,1994. August fist on
The State recalled Johnson Officer as a rebuttal witness. following testimony offered and admitted: *4 “Q. you Key-El When asked Mrs. happened what her you and she told that her husband her struck where was the standing defendant then?
A. When she said that he struck her?
Q. Yes.
A. She was standing the kitchen. kitchen;
Q. She was in the where he? was room. standing dining behind me A. He was many you? from away how feet Q. Again approximately four. Maybe three or A. From me? said? hearing what she
Q. you any difficulty Did A. No. enough volume that a
Q. it said with Was to hear that have been able position of the defendant would statement?
A. Yes. Objection.
MR. KATZ:
THE COURT: Overruled.
A. Yes. hit me did the defendant my husband
Q. When she said that statement? deny May approach? Objection. KATZ: we
MR. already than what we ar- Anything THE new COURT: gued? No,
MR. KATZ: Your Honor. for the Objection THE is overruled but noted COURT: record. anything
A. He at all.” say didn’t jury in the Circuit guilty The Petitioner was found battery County Court for and was sentenced to Baltimore a sentence he years imprisonment five consecutive to which already for an unrelated crime. After the Court serving judgment, we issued our writ Special Appeals affirmed Key-El. of certiorari on the of Mr. petition Petitioner contends that evidence his per se inadmissable of a officer should not, State; and if this the law of of this then under evidence guilt or when admitted on the issue of innocence compelled self- impermissibly infringes upon Amendment to the protected by incrimination the Fifth U.S. *5 816
Constitution and Article 22 of our of Rights. Declaration We shall address separately. those contentions
II.
long
so
Maryland
recognized
has
called “tacit admissions”
party-opponent
both civil and criminal
as
actions
Henry
rule under common law. See
exception
hearsay
State,
204, 242,
v.
(1991);
Briggeman
v.
324
“the
Title 5 and the other rules changes
adopted by
Court shall govern
this
the courts of this State
all
their
parties
attorneys
pro-
and
in all actions and
.
therein,
ceedings
except
provided in such
as otherwise
Rules;
they
July
take
shall
effect
1994 and shall
apply
hearings
date;
all trials and
commenced on or after that
(1)
however,
provided,
any
trial
hearing
or
commenced
prior
July
1994 shall
governed
continue to be
30,1994,
in effect
law
Rules
on June
no evidence
shall be admitted
a defendant
in a criminal action in
of á
proof
prior
July
crime committed
unless that
have been
would
admissible under
the law and
”
State,
See Graves v.
Rules
effect on June
1994....
(1994).1
1201 n. 2
n.
36-7
when one
tacit admission occurs
“[a]
have observed
We
untrue,
that, if
would
in the face
accusations
remains silent
or her defense.”
speak
naturally rouse
*6
State,
241,
also
at
“In the other’s be considered order for statement admission, must following prerequisite party’s tacit the (1) the and understood the other party satisfied: heard (2) time, an statement; party had person’s at (3) circumstances, a opportunity to under respond; disagreed party’s position, who person reasonable statement, disagreement. would have voiced that with the of the knowledge must first-hand party have had matter addressed in the statement.” McLain, Mary- 241-42, Lynn 1024 (quoting Id. at 801(4).3 (1987)). see at 312-13 Evidence, land hear Petitioner not assert that he did not or under- does he hair and struck pulled his accusation that her stand wife’s respond. opportunity her or that he did not to have Rather, present, he contends that whenever a officer is of incrimi- subject silence a who is the pre-arrest nating ambiguous is at best because of the wide statement knowledge right the Fifth Amendment to remain spread Alternatively, he even if we hold silent. asserts that should no se adopted, rule be we should conclude that under per judge the circumstances of the instant case the trial erred ambiguous his too admitting evidence because silence was clearly by slight probative outweighed that its value was such to him. possible prejudice considering placed upon the limits the use of
When
evidence,
Supreme
defendant’s silence as
Court
States,
Special Appeals
United
this Court and
Court of
February
petitioner
1. The
was tried on
6 and
for
offense
August
giving
case which
1994. Conse-
rise
this
occurred
quently,
the admission of the evidence at issue in
instant case
5-803(a)(2).
governed by Md. Rule
distinguished
pre-arrest
post-arrest
between
silence.
Anderson,
v.
231, 100
Jenkins
U.S.
65 L.Ed.2d
S.Ct.
(1980) (The
Court held that the use of
impeach
testimony
the defendant
his
trial
not im
at
did
properly burden his Fifth
right
Amendment
remain silent
deny
nor
him the
guaranteed by
fundamental
fairness
the due
Ohio,
Amendment);
Doyle v.
process clause of the Fourteenth
(1976)
2240, 2245,
426 U.S.
S.Ct.
The Court of
has
Special
a tacit admission of a defendant where
occurred
party
the face
an accusation
a third
State,
police
Md.App,
of a
officer. Williams
(1968). In
another
Ferrara, (1991) 31 582 Mass.App.Ct. N.E.2d 961 upheld courts the admission of such evidence. v. People 73 DeGeorge, N.Y.2d 543 N.Y.S.2d N.E.2d (1989), Dravecz, v. Commonwealth Pa. the use of the tacit accused’s admission was held to
be reversible error. The rule in Michigan is not clear. Cf.
Cetlinski,
People
435 Mich.
Furthermore, reject we Petitioner’s argument alternative Maryland under evidence law that we should hold that trial court abused in admitting its discretion evidence as tacit admission. We noted earlier that of all of the threshold factors the court required determining consider admissibility, only factor contested was whether the Peti- tioner would have been expected deny his wife’s accusation made in of a officer. Considering the fact Petitioner was Ms own home at the time that his wife made what she later testified was a false battery accusation of him, the accusation could very well be construed as that kind of statement which naturally provoked should have an immediate denial from the Petitioner. fact that Peti- tioner possibly highly remained silent was eyes of the jury reaching when a conclusion as to whether or not the story Key-El that Pamela told at trial was credible. The trial court did not abuse its discretion in allowing jury weight determine the to be accorded the tacit admission.
III.
Finally,
Petitioner contends
the use of his pre
arrest silence as a tacit admission impermissibly burdens his
right against compelled self-incrimination protected by the
Fifth
Supreme
Amendment.2 The
Court of the United States
Rights
protects against
2. Article 22 of
compelled
our Declaration of
also
generally
pari
self-incrimination.
It has
been held
materia with
Amendment,
State,
the Fifth
586 n.
In 380 U.S. S.Ct. Griffin (1965) the Fifth Amendment the Court held that L.Ed.2d accused’s by prosecutor either comment the the forbids by or that to at his trial instructions the court testify failure Nevertheless, in guilt. of United such silence is evidence Robinson, L.Ed.2d 23 States v. 485 U.S. 108 S.Ct. (1988), holding to its in to the Court declined extend Griffin a from to the prevent prosecutor referring defendant’s in argued closing argument trial where defense counsel his at by the to that the defendant had not been allowed Government of in Robinson: story. explained his side the Court give Fifth in the effect that the “The broad dicta Griffin ... the on the by prosecution Amendment ‘forbids comment silence,’ in facts light ... must taken accused’s hold, thing Griffin, as we in of that case. It is one did of prosecutor may that the treat defendant’s exercise at his silent trial as substantive evidence remain here, to urge, it is another as defendant does guilt; quite prosecutor from reasoning prohibit that the would same argument by ad- fairly responding to an defendant verting may to that silence. There be some ‘cost’ situation, but having remained silent each defendant response by a fair expand preclude we decline to Griffin present such as the one.” prosecutor situations 869-70, 33-4, 108 99 L.Ed.2d. at 32. Id. 485 U.S. at S.Ct. Ohio, 426 U.S. 49 L.Ed.2d Doyle S.Ct. (1976), Supreme whether prosecution Court considered had could use the defendant’s silence after he permissibly warnings received his Miranda at the time his arrest exculpatory about cross examination of defendant argument case and the Petitioner makes no issue in the judice any differently 22 of the sub should be resolved under Art. Rights. Declaration story, told for the first time at trial. The Court held such and Miranda post-arrest warnings use of silence was funda- mentally unfair and prohibited Due Process Clause the Fourteenth Amendment. The Court reasoned: case, [Miranda
“The
mandated
warnings
as
]
*10
prophylactic
safeguarding
means of
Fifth Amendment
Tucker,
433,
Michigan
rights,
see
417 U.S.
443-444 [94
2357, 2363-2364,
(1974),
41
require
S.Ct.
L.Ed.2d
that a
182]
person
custody
immediately
taken into
be advised
that he
silent,
right
has the
to remain
that anything
says may
he
be
him,
used
right
he has
to retained or
appointed
submitting
interrogation.
counsel before
to
Si-
in
warnings may
lence
the wake of these
nothing
more
arrestee’s exercise of these Miranda
Thus,
than the
rights.
every
post-arrest
insolubly ambiguous
silence
because of
what
to
required
State is
advise the
arrested.
v. Hale
171],
2133,
See United States
U.S.
177
[422
[95 S.Ct.
(1975)]. Moreover,
Nevertheless,
in Jenkins v.
447 U.S.
100
S.Ct.
“It can be that a arrest will not remain silent if his failure to later can speak be used impeach ‘every him. But the Constitution does not forbid in government-imposed process choice the criminal that has discouraging the effect of the exercise of constitutional “ ” rights.’ question compel- ... The ‘threshold is whether appreciable any extent ling impairs the election to an ” rights involved.’ policies behind in at at 93. And 447 U.S. at S.Ct. L.Ed.2d no explaining why it held that there was breach Fourteenth process, Amendment due the Court said: case, governmental petitioner “In no action induced this speak oc- to remain silent before arrest. failure into petitioner custody curred was taken before Consequently, the fundamental given warnings. Miranda not Doyle present this case. We present unfairness prearrest hold use silence does impeachment Fourteenth Amendment.” violate the 96.3 at 65 L.Ed.2d at Also Id. 447 S.Ct. U.S. Weir, L.Ed.2d in Fletcher v. U.S. S.Ct. (1982), ruled that a court did not Supreme Court State process permitting due cross-examination deny post-arrest of him as the absence Miranda as to his to remain warnings or similar assurances silent. *11 not on the agreed The circuit courts have issue federal pre-Miranda warnings silence permissible pre-arrest, use It against substantive evidence accused. was as Burson, 1196, 1200-01 States v. 952 F.2d permitted United (10th denied, Cir.1991), 1702, cert. 503 U.S. 112 S.Ct. 118 Powell, 1562, 1567-68 (1992); Coppola 411 v. 878 F.2d L.Ed.2d (1st. denied, Cir.), 493 U.S. 110 S.Ct. 107 cert. Lane, Savory L.Ed.2d 383 United States ex rel. (7th Cir.1987). F.2d Circuit has The Seventh holding permitted its in Lane comment since limited pre-arrest when the prosecutor upon an accused’s selectively responded investigator’s questions. to an Circuit, Rivera, Eleventh United States F.2d pre-arrest present only asserts of his 3. Petitioner in the case that the usé warnings pre-Miranda as substantive evidence from which a impermissibly tacit could be inferred burdened his Fifth admission compelled No fundamen- Amendment self-incrimination. resulting process tal in a denial of due under the Fourteenth unfairness Amendment is claimed. (11th Cir.1991) United States v. Circuit, Fifth and the Zanabria, (5th Cir.1996) 74 F.3d permitted prosecutorial comment accused’s upon silence. of a in response
When silence
defendant
to an incrimi
,
natory
accusation is used
the prosecution as the basis for
admission,
an inference of a tacit
validly
defendant can not
the privilege against compelled self-incrimination
assert
has been violated. As
concurring
Justice Stevens wrote in his
in Jenkins v.
Anderson:
opinion
whatever,
a citizen is
compulsion
‘When
under no official
silent,
to speak
whether
or to remain
I see no
why
reason
his voluntary decision to do one or the other should raise
any issue under the Fifth
For in
]
determin-
Amendment!
ing
privilege
whether
is applicable,
question
whether
in a
petitioner
position
testimony
was
to have his
compelled
privilege,
and then asserted his
not simply wheth-
er he
A
ignores
was silent.
different view
the clear words
of the Fifth Amendment----
I would simply
Consequently,
admissibility
hold that
of petitioner’s failure to come
forward with the
shortly.
excuse
self-defense
after the
stabbing raised a
evidentiary question
routine
that turns on
significance of that evidence and
no
presented
issue under the Federal Constitution.”
243—44,
98. See
We incriminating of silence face Should defendant’s evi- against him as substantive accusations be admissible made to guilt prior dence of when accusations were those police? in of the presence his arrest but matter Appeals Mary of held that as a of Special The Court law, of within land evidence evidence Petitioner’s falls a tacit exception hearsay rule and was admissible as majority agrees, admission silence. The this Court court. Both courts conclud appellate affirms intermediate in highly rendering probative ed Petitioner’s silence was Key-El’s testimony unworthy Pamela in-court belief and as to jury reaching would aid the “when conclusion whether at trial credi story Key-El or not that Pamela told was judgment I reverse disagree, ble.” would admission Special ground a tacit Appeals Court in too ambiguous any officers is ordinarily value and should not be admissible as guilt.1 substantive evidence of important keep presented It is that the 1. mind issue in this case involves evidence of silence when as evi- used substantive dence, i.e., imply guilty, when used that the defendant and not impeach testimony when used to a defendant's if he testifies in his own defense. case, testify. pre- this Petitioner did not Evidence of Petitioner's rebuttal, response apparent Mrs. arrest silence was introduced in injuries. Key-El’s testimony her husband had not caused her majority highly probative concludes that Petitioner's rendering unworthy Key-El's testimony Mrs. in-court belief and *13 The tacit is generally accepted admission rule as an excep- tion to the If a hearsay rule. statement is made in a party’s which, untrue, presence, containing assertions of facts if the party would under the circumstances naturally expected be deny, then the failure to has speak traditionally been admissi- against party ble evidence the as an admission. Ewell v. State, 615, 618, 857, (1962); 228 Md. 180 A.2d 859-60 see also (J. § ed., at Strong, 648-58 4th McCormick, On Evidence Lynn Maryland 1992); ed. 801(4).3, § McLain, at Evidence (Chad- § 312-13- at 102-06 Wigmore, Evidence 1972). bourn rev.
In Maryland, certain prerequisites must be satisfied before
this kind of evidence is admitted. The foundation for admit
ting
generally
a tacit admission
requires proof
following:
of the
(1)
made, (2)
actually
that the statement was
the defen
dant must have heard and understood the accusatory state
(3)
ment,
time,
that at that
the
opportunity
defendant had an
statement,
to deny
accusatory
that under
calling
circumstances
for a
reply,
defendant
remained
Zink,
197, 202,
silent.
Zink v.
215 Md.
137 A.2d
142-43
(1957). A tacit admission must be made “in an environment
and in the
actors such that a reply might naturally
Ewell,
expected.”
860;
been
(1959); Zink, 202, 137 142; State, 215 Md. at A.2cl at Barber v. jury reaching would aid the "when a conclusion as to whether or not story Key-El actuality, that Pamela told at trial was credible.” guilt. evidence was used as substantive evidence of Petitioner’s Although prosecutor argued before the triál court that the evidence impeachment admissible both as a tacit admission and as "critical credibility story evidence” that "bears on the Key- told Mrs. El,” closing argued jury he that: her____ [Key-El] the reason remained silent is because he struck A defendant, innocent, position truly who did not things expected protest.... do these would have been The defen- was, fact, dant does not do that. He doesn’t do that because he person who struck her. evidence, Since Petitioner’s silence was used as substantive question petition, and that majority is the in the certiorari should be (the concerned with whether evidence was of Petitioner’s guilt, credibility Key-El’s testimony. not whether it bears on the of Mrs. (1948). A tacit admission A.2d no “only explana when other used a defendant may be Zink, at with silence.” Md. equally consistent tion 649-50; § 142; supra, A.2d at see also McCormick, to deny may at 103.2 “If a failure supra, § Wigmore, other on some inference than explainable more naturally *14 statement, the testimony in of the the as to of the truth belief Ewell, should not be received.” occurrence at A.2d at 859. 180 the is that underlying tacit admission rule premise
The of since guilt, the face of an accusation is deny accused will falsely an innocent individual who suggested have often accusation. Courts commentators caution, “an such received with admonition evidence be cases.” McCormick, especially appropriate that is criminal (E. 1984); ed., Cleary, § at 800 3d ed. see On Evidence Admissions, also, 21 McLeroy, D. Tacit Todd Cumb.L.Rev. Garcia, N.J.Super. v. State (1964). of the tacit admission rule is Criticism See, Garcia, 863-65; see e.g., People new. 199 A.2d at also Todaro, (Weist, J., 256 Mich. N.W. dissenting). Supreme decision in Miranda Since Court’s Arizona, 1602,16 (1966), 86 S.Ct. L.Ed.2d 694 384 U.S. more courts questioning premise are now the rule begun modify to rethink and the tacit admission rule. Gamble, Charles The Admission Rule: See W. Tacit Unrelia- Ripe ble and Doctrine For Abandon- Unconstitutional—A (1979). ment, 14 Although Ga.L.Rev. Miranda addressed Wigmore Professor that: 2. observed videtur,” consent,” gives "Qui tacit "silence are ancient consentiré maxims, unquestioned ever a which have been taken to be and have But, scope larger application than their in the law Evidence. like maxims, serve, merely up principle, and they all sum a broad cannot qualification, precise practical without as rules.... decided general Relevancy principle that the of assent tells us inference may safely only explanation equally be made when no consis- other with tent silence. 1972) (Chadbourn (emphasis § Wigmore, at 102 rev. Evidence added). silence, aspect
the constitutional decision has had an impact evidentiary approach on courts’ to the tacit admission Wilner, then problem. Judge Judge Chief Court of Court, Special Appeals, and now member of this commented of the Miranda decision in his impact concurring on the He wrote: opinion below. anyone average intelligence seems clear to me that
[I]t slightest who had exposure popular has even litera- incriminating ture or television knows that statements made excludible, suspect may, an accused unless otherwise be subsequent used him or her criminal trial. Although required Court has Supreme give directly such a warning engaging when custodial I interrogations, public large, expect, assumes that incriminating any may made at time come to statements haunt the accused.
I problem have no with the tacit admission rule where present, there is no one else other than the accuser and the suspect, may or even when the other witnesses who be present likely are not perceived suspect as a *15 threat to him. the accusation is made in presence When however, officers, is, best, of law enforcement ambiguous. the absence of evidence on the we point, really speculate why can do no more than as to the accused may did not There respond. plausible be several reasons for or than in acquiescence his her silence other the truth of the accusation. tacit premise questioned, of the admission rule has been
and, cases, rejected, in in outright part some due to the recognition increasingly ambiguous that silence is that now parte to remain silent. See Ex people are aware of their Marek, (Ala.1989) 375, (abolishing 556 382 the tacit So.2d rule). admission Some state courts have concluded that be- may cause there are several reasons an individual remain silent, silence in the of pre-arrest presence police officers does See, e.g., not have sufficient value to be admissible. (Iowa 1972) v. Kelsey, State 921, (recognizing 201 N.W.2d 925 silence, ambiguity of pre-arrest proscribed court
829 criminal in a against admissions use of tacit Dravecz, A.2d v. 424 Pa. 227 proceeding); Commonwealth (1967) of the tacit (proscribing applicability 904, 906-09 or in the police custody is in rule when defendant admission Daniels, v. State officer); Conn.App. of a presence police (1989) presence (concluding that A.2d of rendered and the emotional state the victim police ambiguous). choice remain silent defendant’s concluded, grounds, courts have constitutional Other of a introducing from precluded prosecution response any question in pre-arrest defendant’s officer, presence any from a or to statement made police Burson, v. See United States imply guilt. police, Cir.1991) (10th that defen (concluding 1200-01 F.2d non-custodial, pre-arrest privi silence was invocation of dant’s inadmissible, self-incrimination, against and as such was lege of whether advised of regardless privilege he was denied, self-incrimination), cert. 997, 112 503 U.S. S.Ct. Powell, v. Coppola (1992); F.2d 118 L.Ed.2d (1st Cir.) to answer (holding 1567-68 defendant’s refusal in a an invoca questions pre-arrest, pre-custodial context was inad privilege against tion of his self-incrimination and was cert. guilt), missible case-in-chief as substantive evidence denied, 418, 107 493 U.S. 110 S.Ct. L.Ed.2d Lane, ex rel. Savory United States 832 F.2d 1017-18 (7th Cir.1987) (holding that use defendant’s police to answer as substantive evidence questions refusal silent); guilt right to remain violated defendant’s constitutional Cull, Commonwealth n. 5 540 Pa. A.2d rule (noting inapplicable tacit admission custody or criminal cases where defendant contrary policy would police officers because self- effectively right against vitiate defendant’s constitutional *16 Villarreal, State v. incrimination); P.2d Ariz. (App.1980) (holding pre-arrest, pre-Mi that defendant’s case-in- randa “admission silence” not admissible state’s Comment, officer); see also made to chief when to Comment on a Should Prosecution Be Allowed Defen- Loy.U.Chi. Case-in-Chief, dant’s Pre-Arrest Silence in Its (1997). L.J. 181 objects
The
that an
underlying premise
person
innocent
when confronted with a
accusation
analyzed
baseless
rejected
Marek,
Supreme
Court Alabama. Ex Parte
That that an innocent person objects accusation, inap- when confronted with a baseless it does not account for propriately simple, because when, may manifold motivations that an accused con- accusation, fronted with an he chooses to remain silent. crime, might Confronted with an accusation of a the accused remain angry, frightened, well silent because he is or or right because he thinks he has the to remain silent that the Furthermore, mass media publicized. have so well without premise that silence thé face of an accusation means thát the thinks he is tacit guilty, admission rule scrutiny, cannot withstand because the observation that the necessarily accused remained silent could not lead guilty; inference that the accused knew he was without premise that silence in the face of accusation necessarily results from the tacit guilt, merely admission rule describes events', silence,’without giv- two concurrent accusation and ing the reason for the concurrence of the events. two Accordingly, logic experience any long- neither nor common rule, if, indeed, supports er the tacit admission either ever supported it.
Id. at 381.3 Pennsylvania Supreme Court reasoned that the rule foundation,
lacks a
on a wholly
premise,
solid
founded
false
Marek,
(Ala.1989),
Supreme
3.
In Ex Parte
This which become rule, broad, precise for sweeping, and elusive is too wide liberty a his where man’s and interpretation, particularly at determines whether state- good name are stake. Who is “naturally” ment calls for a denial? What is one which not be for person may for one natural another. natural pride of such and that persons possessed dignity There are contempt with a dishonest accusa- they would treat silent refusing dignify for they punished tion. Are with regard wholly reprehensible? denial as they what false Dravecz, rule, at the court Denouncing 906. Ingersoll’s G. funeral oration for Roscoe Con- quoted Robert “ kling maligned, misrepresented he said: ‘He was which misunderstood, not He but he would answer. was as silence, any better than form silent then as he now—and ” Id. n. 1. speech, every charge.’ Noting refuted necessarily do proverbs, repre- maxims and axioms not truths, opponents vigorous sent the court recounted universal one, hurt proverb lips Silence is “Closed no Golden: time, eternity; Speech is silence is For speaking may; rend, end; till words but silence most noble divide sound; to heal Be poultice And silence like comes the blows of (em- you.” Id. at safe, betrays silent and silence never phasis original). The court concluded that the tacit “not reason admission rule is rule but unrestrained Id. at babblement.” 908. pre-arrest not
New York has also decided silence does value to be admissible evidence as sufficient matter, or, guilt, impeachment for that for admission purposes. People DeGeorge, 78 N.Y.2d right, accused is of that nevertheless whether advised recognized although exists.” Id. at 381. court constitu- may apply tional Amendment to the use of restraints Fifth silence, logical pre-arrest problems with “the fundamental the rule remain.” Id. 11, 13 (1989), N.Y.S.2d 541 N.E.2d York New Court of Appeals held that silence in police officers is inadmissible because silence is the natural many people reaction of in the presence of law enforcement officers. The court observed:
Silence these circumstances is ambiguous because an person may innocent have many speaking. reasons for not *18 Among those a person’s identified are awareness that he is under no obligation speak or to the natural caution that from knowledge anything arises he says might later trial, against be used him at a belief that efforts at exonera- circumstances, tion would be futile under the or because explicit speak instructions not to from an attorney. More- over, there are individuals who mistrust law enforcement officials speak and refuse to to them not they because are crime, guilty of some but rather because they are fearful of coming into contact with those they regard antago- whom as In nists. most it impossible cases is to conclude that a failure to speak guilt is more consistent with than with innocence.
Moreover, despite its lack of probative value the evidence undoubtedly Jurors, affects a credibility. witness’s who may not be variety sensitive to the wide of alternative silence, explanations pretrial for a defendant’s may assign weight much more to it than is warranted and thus the may create a substantial risk of prejudice. Id. (quotation marks and internal citations omitted). view,
In my silence in presence the of law is enforcement ambiguous, minimal, its value because an inno- cent person may many have reasons speaking out. for The chief reason is that today, following commonly known Miranda, decision, people most are aware that they are not required to speak, they anything they say also know that might be used them at a trial. As Supreme Court noted, recently for possibility “[a]nd as the person investigation may under be unaware of his to remain silent: In age the modem of frequently dramatized ‘Miranda’ States, that is implausible.” Brogan v. United warnings, (1998). U.S.-,-, L.Ed.2d 118 S.CL addition, police may for some citizens harbor mistrust them, would communication with even when it choose avoid State, do so. See Davis v. their best interest to (1996) (Raker, J., 331, 350-53, 1092-93 concur 353-58, J., (Eldridge, dissent ring); id. at A.2d 1093-96 individual of a criminal act ing). Since an who on a may of a officer choose remain silent based front silent, to remain or popularized right general awareness or suspicion police, out of mistrust even ambiguous. officers of law enforcement As presence concluded, premise without the Supreme Alabama Court necessarily of an results from the face accusation two merely rule describes concurrent guilt, tacit admission silence, events, the reason for giving accusation and without Marek, 556 of the two events. Ex Parte the concurrence Maryland evidentiary grounds, at 381. Based So.2d inapplicable in the context tacit admission rule should be officers.4 accusations made law enforcement Judge BELL and ELDRIDGE authorized Judge Chief *19 in this they join expressed me to the views state dissenting opinion. principle that should decide
4. Based on the well-settled courts not unnecessarily, I would reach the constitutional constitutional issues question lurking in the bushes. See Nurses Dimensions Professional 132, 139, Corp., Md. 695 A.2d Health Middleman Comm., (1963). Md.-Nat.